People
from every country come to California to
pursue their dreams and to escape
financial and personal problems. They
bring with them the baggage of
unsatisfied obligations for support,
unresolved child custody disputes, and
unpaid property settlements. Ex-spouses
and lovers follow the scofflaws here with
their foreign court orders to collect
what is owed. Stolen children, unpaid
support, and unsatisfied money judgments
are the fallout from a litigious and
peripatetic populace. The challenge for
the California lawyer is to enforce a
foreign court order issued under an alien
court system with different rules,
procedures, and standards.

Before
California law can be utilized to enforce
foreign(3)
divorce judgments the foreign court order(4)
must first be established as a California
order. To establish the order as a
California order, it must be recognized
by our courts as valid.

The
full faith and credit clause of the
United States Constitution prescribes
that a state must recognize the public
acts, records, and judicial proceedings
of every other state.(5)
However, this mandate does not apply to
the decrees of foreign countries. Even
without the assurance of the full faith
and credit clause, our courts may
give recognition to the judgment of a
foreign nation as matter of comity. The
comity doctrine holds that, as a
courtesy, a court may recognize a foreign
court order, but is not compelled to do
so. This extension or denial of comity is
discretionary and is reviewed on an abuse
of discretion standard,(6)
allowing the trial court wide latitude.
Because the comity doctrine is
discretionary, it is undependable.

Due
to the comity doctrine's unreliability,
business and government agencies have
lobbied successfully for legislation that
will ensure that support orders, money
judgments, and custody decrees issued in
foreign countries will be recognized by
our courts in the same manner as they
would recognize the judgments of the
other states. The statutes that serve
this purpose were drafted by the National
Conference of Commissioners on Uniform
State Laws. The Uniform Child Custody
Jurisdiction Act is primarily designed to
enforce custody decrees(7)
and the Uniform Interstate Family Support
Act enforces support orders(8)
between the states. They each, however,
include provisions that allow for the
recognition of foreign country court
orders. The Uniform Foreign Recognition
of Money Judgments Act(9)
("UFMJRA") was drafted
specifically to ensure that money
judgments from other countries will be
recognized by California courts.

The
uniform laws relating to support and
custody permit the registration of
foreign court orders and objections to
registration and enforcement issues are
resolved in the Family Law Department of
the Superior Court. Registration
simplifies the process because the order
becomes a California court order at the
time of registration. On the other hand,
to obtain recognition of orders for the
payment of non-support foreign money
judgments under UFMJRA, a complaint must
be filed to establish the judgment in the
Superior Court. The issues raised under
UFMJRA relating to jurisdiction and
enforcement are resolved in the Civil
Department of the Superior Court, even
though they may arise out of a family law
judgment.(10)

The
statutes described above cover most
orders in a divorce decree  custody
orders, support orders, orders for the
payment of money to equalize the division
of the marital property, and orders for
attorney's fees.

Foreign
orders for the division of California
real property are not covered by any
uniform law. The comity doctrine is the
only recourse in obtaining recognition of
the foreign court order. The party
enforcing a foreign court order to divide
California real property may bring an
action for partition in the Civil
Department of the Superior Court. When
these actions are filed, a lis
pendens is often filed and recorded
con-currently in the county where the
property is located.

Whether
the foreign order is recognized as a
California order utilizing the common law
comity doctrine or is being established
pursuant to statute, the same
constitutional jurisdictional
prerequisites apply.(11)
Thus, the California court must first
determine whether the foreign country had
jurisdiction over the parties when the
order was issued. To make this
determination, the part of the judgment
that is being enforced must be examined.
For the purpose of determining whether
the foreign court had jurisdiction, a
divorce judgment is not treated as if it
were one court order. The divorce
judgment is unique in that it contains
separate court orders for support,
custody, children, and property, each
having different jurisdictional
requirements. This division of the
divorce judgment into separate orders
with different jurisdictional
requirements is called the doctrine of
divisible divorce.(12)
Thus, for a court to recognize an order
or enforce a divorce judgment it must
have the requisite jurisdiction over the
part of the decree that must be enforced.

To
properly terminate marital status
requires the court to possess subject
matter jurisdiction over the res; child
custody orders require subject matter
jurisdiction over the children; orders
for the payment of money require in
personam jurisdiction; and orders
regarding property division may require
both in rem and in personam jurisdiction.
For example, if a child of divorcing
parents were legally living in California
for six or more months(13)
at the date the divorce is filed, the
California court would have subject
matter jurisdiction to make custody
orders, but if the parent who is
obligated to pay support for the child
were living in Scotland, and our court
did not have personal jurisdiction over
him, a support proceeding would have to
be commenced in Scotland.

Once
the California court has determined that
the foreign court had proper jurisdiction
to issue the order, it must then
determine if the defendant had notice and
an opportunity to be heard in the foreign
country.(14)
Only after these constitutional
requirements are met and the order is
recognized, can it be enforced in
California.

Recognition
of Foreign Custody Orders

Foreign
custody orders are enforced in California
pursuant to California's version of the
Uniform Child Custody Jurisdiction Act
("UCCJA"), codified as Family
Code § 3400 et seq. To register a
foreign judgment, a certified copy(15)
of that judgment must be filed in the
superior court of the county in which it
is to be enforced,(16)
along with a translation of that judgment(17)
and a declaration filed under the UCCJA.(18)
This declaration provides information to
the court that may assist it determining
whether it has jurisdiction. The
declaration notifies the court where the
child or children lived in the last five
years, if there is another action pending
in another court, and if any other
parties claim to have custody of the
child.

Once
the custody order is registered, it can
be enforced using the same procedures as
would any other California court order.
Notice of the registration is not
required. When the enforcement is sought
on the registered order, the type of
notice given will depend on the remedy
sought. In the case of a kidnaping, often
no notice is required. The defendant may
challenge the registration on the basis
that the foreign court's orders are
invalid by filing a motion to quash. If
the order was rendered in a country whose
institutions are similar to those of
other states and a "reasonable
notice and opportunity to be heard was
given to affected persons,"(19)
that order will be recognized by the
California court.

In
re Marriage of Malak(20)
is significant in that it affirms that
our courts will recognize court orders
from countries with laws different from
our own. The trial court in Malak
refused to recognize the child custody
orders of the Sherei Sunnit Court of
Beirut, Lebanon, because the court
believed that the Islamic court issued an
interim custody decree without notice,
that the order did not afford Mrs. Malak
"notice and opportunity to be
heard," and because the Islamic
court did not appear to hold the
"best interest of the child a
central consideration in its
determination of custody."(21)
The appellate court reversed the trial
court and found that Lebanese law
provided for reasonable notice and an
opportunity to be heard and was not
unlike California's ex parte procedure
authorized by former Civil Code section
4600.1.(22)
Further, since the Lebanese court acted
when Lebanon was homeland of both parties(23),
had significant connections with the
family(24)
and its laws looked to the best interests
of children, it acted under statutory
provisions substantially in accordance
with our uniform custody laws(25).

In
situations where different countries
issue valid conflicting custody orders,
priority is given to the first person to
file their custody action.(26)
An instructive example of how this type
of conflict was resolved is described in In
re Stephanie M.(27)
In Stephanie M. it was held that
a California dependency court properly
refused to recognize the custody order of
a Mexican court when the Mexican court
order was issued after the
dependency court issued its order
terminating the parental rights of a
Mexican couple living in Long Beach. The
child's grandmother (who lived in Mexico)
and the child's foster parents both
requested that they be appointed
guardians of the child. After a thorough
investigation and numerous hearings, the
trial court granted the foster parents
guardianship. Only after the California
court entered its final order did a
Mexican court issue a conflicting order
granting the guardianship of the child to
the grandmother. The Mexican consulate
wrote a letter advising the California
court that there was a guardianship
decree from a Mexican court and that
pursuant to the Multilateral Vienna
Convention on Consular Relations and
Optional Protocol on Disputes of April
23, 1963,(28)
the California court had to recognize and
enforce the Mexican court order.(29)
The California dependency court refused
to vacate its order and enforce the
Mexican order. The California Supreme
Court affirmed the trial court's decision
and held that although California courts
may enforce foreign custody orders of
other countries, they are not obligated
to do so.(30)
The Supreme court further held that the
letter from the Mexican consulate
informing it there was a guardianship
decree from a Mexican court does not bind
the California court where there was a
prior California judgment terminating the
parental rights of a Mexican child.(31)
Moreover, the Supreme Court held that the
Multilateral Vienna Convention does not
apply, since that treaty recognizes the
jurisdiction of a court in the receiving
state (in this case California) to apply
its laws to a foreign national and does
not make jurisdiction dependent on notice
(the Mexican consulate claimed it was not
given notice). The Supreme Court held
that the trial court properly applied the
Uniform Child Custody Jurisdiction Act,(32)
which states that international custody
orders are to be enforced to the same
extent that the order of a sister state
would be enforced.(33)

One
of the purposes of the Uniform Child
Custody Jurisdiction Act is to
"deter abductions and other
unilateral removals of children
undertaken to obtain custody
awards."(34)
To recover stolen children requires quick
and decisive action on the part of the
attorney. After registering the certified
copy of the foreign order (with the
translation), a warrant in lieu of writ
of habeas corpus can be filed to order
the release of the child.(35)
The assistance of the District Attorney
can be used to locate the party and the
child and to bring the child to the
hearing.(36)
The party detaining the child may attempt
to persuade the court to conduct a
hearing to determine the best interest of
the child. This attempt to relitigate the
issue of custody must be vigorously
resisted. The only issues that
should be addressed at the hearing are
whether there is a valid foreign court
order, whether the order was made by an
institution similar in nature to ours,
and whether the party had notice and
opportunity to be heard in the foreign
jurisdiction.(37)

The
party detaining the child is also likely
to argue that the California court should
assert "emergency jurisdiction"
under Family Code § 3403(a)(3) because
"the child has been subjected to or
threatened with mistreatment or abuse or
is otherwise neglected or dependent which
includes a child who has a parent who is
victim of domestic violence...."
Emergency jurisdiction should only be
asserted for the purpose of insuring that
the child is safely returned to the
country that issued the custody order and
not for the purpose of modifying the
foreign country's' court order.(38)

The
party seeking to enforce a foreign
custody order can also request that the
party violating the order pay attorney's
fees, travel costs, and other expenses to
the party and their witnesses.(39)

Foreign
Support Orders and Paternity Judgments

The
Uniform Interstate Family Support Act
("UIFSA")(40)
was enacted as California law on January
1, 1998 to more efficiently enforce the
child and spousal support orders, as well
as paternity judgments, of other states
and countries.(41)
The prerequisite to enforce another
country's orders under UIFSA is that the
country of origin must have a "law
or procedure substantially similar to
UIFSA's, or one of UIFSA's precursors
 the Uniform Reciprocal Enforcement
of Support Act ('URESA') and the Revised
Uniform Reciprocal Enforcement of Support
Act ('RURESA')."(42)
UIFSA does not require that there be
reciprocity between the foreign country
and California for a foreign support
order to be enforced.(43)